Industry Insider | Q&A Marilyn Bergman

DISCUSSING ASCAP'S BILL OF RIGHTS FOR SONGWRITERS AND COMPOSERS
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FIG. 1: Marilyn Bergman is ASCAP''s president and chairman of the board.
Courtesy Marilyn Bergman

The American Society of Composers, Authors and Publishers (ASCAP), the oldest performing-rights organization in the United States, recently released its Bill of Rights for Songwriters and Composers (see the sidebar on the next page). The initiative puts forth ten core principles pertaining to the rights of music creators. Although it was written by ASCAP, the ideas presented in this document are germane to all songwriters, no matter which performing-rights organization they belong to.

ASCAP has already gathered more than 8,000 signatures for its Bill of Rights, including those of writers Jerry Leiber, Mike Stoller, Stacy “Fergie” Ferguson, Justin Timberlake, Jackson Browne, and Steve Miller. I spoke with ASCAP president and chairman of the board Marilyn Bergman (see Fig. 1), who is herself an Oscar-winning composer. She detailed the impetus behind the Bill of Rights initiative and what songwriters and composers should be aware of as they build their music careers.

What prompted ASCAP to create this Bill of Rights?

The Bill of Rights for Songwriters and Composers is intended to act as a stake in the ground — clearly and succinctly [outlining] the rights to which every songwriter or composer is already entitled. We as creators are simply not always aware of the rights inherent in our craft. And amid all the issues and confusion surrounding the music industry today, it can be all too easy to overlook the source of it all: individual songwriters, lyricists, and composers.

What is the ultimate purpose of the document?

The Bill of Rights is a rallying cry heralding the inherent rights to which music creators are entitled. Awareness building is a very important aspect of this initiative. We must remind the public, members of the music industry, and legislators about the central role and rights of those who conceive and create music. ASCAP will absolutely continue to be a very strong advocate for legislation that is fair to both music creators and music users.

Music can be found all over the Internet on sites like MySpace and YouTube, and even on Yahoo and AOL videos. How are writers being compensated for these uses, and what role does ASCAP play?

What's interesting — and sometimes disturbing — about new-media channels is the sense that somehow the old rules no longer apply. Technology like social networks or file-sharing software are new and innovative content-delivery channels. This innovation in content delivery should not, and does not, change the underlying rights inherent in a creative work, nor should it change the treatment of the creator. It's often this creative content, like music, that makes online sites and services so attractive and valuable to consumers. ASCAP is working hard — and meeting success — at negotiating fair music-performance licenses with various technology players across many categories, each of which is tailored around the way music is performed on the site or service.

What kind of progress have you made?

There was a major milestone on the front this year. In April of 2008, a federal rate court [in New York] ruled on the licensing fees owed to ASCAP by AOL, Real-Networks, and Yahoo. [See ascap.org/press/2008/0430_ratecourtdecision.aspx for details.] ASCAP feels that the court's finding represents a major step toward proper valuation of the music contributions of songwriters, composers, and publishers to online businesses — many of which have built much of their success on the foundation of the creative works of others.

What do you think of the trend in film and TV to give no up-front monies to writers for music placement?

This trend is certainly a reality in today's film and TV landscape. If the up-front money is sacrificed, then the performance right becomes particularly essential — and critical for the composer or songwriter. Film and TV is one area where the need for and role of the performance right becomes starkly clear. [Even if a writer does not receive up-front money for a film or TV usage, he or she will still receive performance royalties for TV airings in the United States and abroad, and for theatrical film showings outside of the United States.]

Why should writers expect a share in all associated profits for new-media usages?

That was the recent conclusion of the federal rate court judge. When the performance of a songwriter's work directly contributes to the overall revenue of a [Web] site — across all aspects of the site — it's only fair for the songwriter to share in that revenue. As was reflected in the court's comprehensive decision, ASCAP's blanket license was deemed the best model for facilitating the legitimate performance of musical works online.

Is it enough for a licensee to pay a fee for a usage, or should writers always demand or expect to share in revenues generated by anything that incorporates a music usage?

Every situation is somewhat different. And there are certainly examples of where the ASCAP blanket license — essentially a licensing fee — is itself based on a share of revenue of the entity taking the license. So in that case, our members are indeed sharing in the revenues that use of music generates. The bigger-picture point here is that with intellectual property, just like with physical property, the owner's permission must be obtained prior to use. Songwriters have the right to be compensated — which can mean more directly sharing in the revenues of a business supported by music use or can mean receiving a fair license fee for use.

Some detractors argue that songwriters benefit from the exposure that free Internet sites filled with user-generated content are giving them, so writers shouldn't be entitled to share in profits. What would you say about that?

Exposure is one thing, but making a living is clearly another. Ultimately, ASCAP believes that the ability of music creators to make a livelihood out of their art cannot be sacrificed — especially not for the chance that some may hit it big via MySpace or another online site. That is simply not a reasonable expectation, nor is it a compelling reason to let companies that generate significant audience engagement and revenue — from the use of musical works — off the hook relative to compensating creators. For this reason, ASCAP will continue to fight and ensure that commercial businesses share a reasonable portion of their sizable revenues with some of the smallest of small-business owners: music creators. After all, it is their content that in many cases attracts and sustains these business models. But at the very least, the user needs to get their permission, and the decision rests with the creator.

How would you advise a songwriter or composer who is asked to give up their rights or compensation?

Being faced with the choice of surrendering rights or compensation is always difficult, particularly for a new songwriter or composer. Ultimately, though, it is critical that they try to take the long-term view. Once surrendered, a right is lost forever. So while “free exposure” may sound appealing or “work on spec” may seem like a foot in the door, there has to be some thoughtful analysis of whether the reward outweighs the risk. It is often a good idea in those cases to try to get a few professional points of view — which can include making an initial call to a lawyer who understands the entertainment field, talking to someone you know who may be further along in the field, [and] reaching out to a performing-rights organization like ASCAP.

Fran Vincent is the author of MySpace for Musicians (Thomson Course Technology, 2007) and president of Retro Island Productions, Inc., a music-services and marketing/PR firm. Visit her atmyspace.com/retroisland.

The Bill of Rights for Songwriters and Composers

The following is the ASCAP Bill of Rights for Songwriters and Composers. For the full text, including the preamble, visitascap.org/rights.

  1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.
  2. We have the right to license our works and control the ways in which they are used.
  3. We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.
  4. We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.
  5. We have the right to choose when and where our creative works may be used for free.
  6. We have the right to develop, document and distribute our works through new media channels — while retaining the right to a share in all associated profits.
  7. We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.
  8. We have the right to earn compensation from all types of “performances,” including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.
  9. We have the right to decline participation in business models that require us to relinquish all or part of our creative rights — or which do not respect our right to be compensated for our work.
  10. We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.